Judge Denies AG Madigan’s Request to Stop State Workers’ Pay

A shutdown of Illinois government has been averted thanks to a decision Thursday by St. Clair County Judge Robert LeChien that permits state employees to continue getting paid, even absent a state appropriations law authorizing it.

Workers' relief that they’ll continue to receive paychecks – as well as politicians’ relief that they won’t have to bear the blame for a broad disruption of state services – may only be temporary: immediately after the judge issued the decision, Attorney General Lisa Madigan vowed to appeal it.

LeChien had issued a preliminary injunction back in July 2015, when the Democratic-dominated General Assembly’s impasse with Republican Gov. Bruce Rauner first left the state without a budget, at the request of state workers represented by the American Federation of State, County and Municipal Employees Council 31.

Although Illinois hasn’t seen a complete budget since, state workers haven’t missed a single paycheck because LeChien’s original injunction has remained in place.

Late last month, Attorney General Madigan, who is the daughter of Rauner’s chief political foe, House Speaker Michael Madigan, asked LeChien to lift the order.

“Only the Illinois General Assembly can make appropriations.” Deputy Solicitor General Brett Legner said on behalf of the Attorney General’s office. ““It is time to restore appropriations power to where the constitution places it.”

Legner’s central argument rested on the legal theory that circumstances have changed in the intervening 19 months since LeChien’s initial decision: The Illinois Supreme Court last year ruled in a separate case that Illinois was not obligated to pay raises guaranteed in AFSCME’s contract if lawmakers had not explicitly authorized it with an appropriation.

“The judiciary just can’t take over the entire state payroll.”

–Deputy Solicitor General Brett Legner

“Over $3 billion in unappropriated funds have been spent on employee pay. It is time, after 19 months and $3 billion,” Legner said. “The Court should dissolve the injunction because there’s no longer any legal basis for it.”

Legner said that a lifting of the injunction – and subsequent threat of a shutdown – could be the impetus that, as it has in other states and on the federal level, force the General Assembly and governor to reach an agreement.

“Other states actually deal with shutdowns,” Legner said. “The judiciary just can’t take over the entire state payroll.”

But the judge agreed with AFSCME attorney Steve Yokich’s argument that the Supreme Court case had particularities that made it different from this one -- explicitly, that the state high court’s decision applies if a union is under a multi-year collective bargaining agreement. Because AFSCME and the Rauner administration have been unable to reach a new contract, AFSCME members are instead working under the terms of their last contract per temporary tolling agreements.

Yokich says the Attorney General’s request to lift the injunction was akin to a game of “chicken,” where two cars are driven face on at high speeds. “Whoever swerves first is ‘chicken’ and loses.”

He says the Attorney General’s motion “was an attempt to create that game of chicken,” and to “precipitate a government shutdown.”

“We don’t see that as an appropriate job description for the Attorney General,” Yokich argued.

AFSCME, Rauner Team Up to Ensure Employee Pay

The court case and underlying argument make for strange bedfellows.

AFSCME members are contemplating going on their first ever strike in protest of Rauner, who is widely perceived as wanting to drain AFSCME’s political strength. In a recent press release, AFSCME director Roberta Lynch was quoted as saying “By refusing to develop a state budget or settle a fair contract with state workers … Bruce Rauner is doing real harm to the people of Illinois. Every lawmaker must stand up and tell the governor to drop his hostage-taking tactics, sign a budget and settle a fair contract with state workers now.”

But on this occasion, Yokich stood alongside attorneys representing Rauner, who also fought to ensure employee pay continues unabated.

A government shutdown precipitated by a stoppage of workers’ paychecks could be politically disastrous for a governor looking toward a 2018 re-election bid, as the public may lay blame on the state’s CEO should services be noticeably interrupted.

“We’re pleased our hardworking state employees, who show up to work every day on behalf of the people of Illinois, will continue to be paid. It is our hope the Attorney General drops this lawsuit so the bipartisan negotiations in the Senate can continue in order to reach a balanced budget with changes to get our state back on track,” Rauner’s General Counsel Dennis Murashko said of the ruling.

Rauner and AFSCME’s attorneys bolstered their position by arguing that the General Assembly had, in fact, “sanctioned” LeChien’s court order, in a single sentence of an 800-page stopgap budget. Article 96 of that law says, simply, “all appropriation authority granted in this Act shall not supersede any order of any court directing the expenditure of funds for fiscal years 2016 or 2017.”

While the bulk of the stopgap budget expired at the end of December, Rauner’s lawyers say part did not, and thus state employee pay was, in fact, appropriated.

While it may not have been the technical, typical way the General Assembly usually delineates how taxpayer money should be spent, “if you step back … they just said ‘let the court orders continue,’” Yokich said.

Yokich also disabused the notion that a shutdown would hasten a budget fix. He says Illinois’ public universities and the state’s social service safety net have suffered for lack of funding, and that failed to broker a deal.

In such times, he said, “courts have the power to step in and ‘unstick’ the other branches of government.”

“Through all state government’s chaos of the past two years, the people of Illinois have been able to rely on state workers to be there, providing important public services. This decision ensures that that commitment can continue,” AFSCME’s Lynch said in statement lauding the decision.

A separate lawsuit was recently filed in St. Clair County by Pay Now Illinois, a coalition of human and service agencies contracted by the state that, unlike state workers, have not been paid because there’s no budget. Ounce of Prevention, an early childhood support agency run by the governor’s wife, Diana Rauner, is a plaintiff. The governor’s office is taking the opposite stance, and is fighting that suit.

The coalition’s leader, Andrea Durbin, was in the courtroom Thursday to watch the proceedings.

“It’s interesting that the governor says state workers should be paid – they deserve to be paid – if they show up to work. We believe that Pay Now Illinois providers also deserve to be paid for the work they do in binding contracts,” Durbin said. “We’re looking forward to having our case heard in this court, in St. Clair …County courts are supposed to be consistent within their own jurisdictions. They’re supposed to follow their own decisions. And so we’ll be asking the court to follow the decisions that it’s made here.”

Feb. 8: Portions of the so-called “grand bargain” passed the Illinois Senate on Wednesday afternoon, but what’s been touted as a bipartisan deal received no Republican support. Is the whole package on the skids?

Jan. 30: State employees are in the middle of a political war on two fronts, both of which could leave workers broke. Both could also spur action that could end Illinois’ 19-month budget impasse by forcing a shutdown.